Case 2:11-cr-00299-HH-FHS Document 276 Filed 07/14/14 Page 1 of 25 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA NEW ORLEANS DIVISION UNITED STATES OF AMERICA § § v. § 2:11-CR-299 § (2:14-CV-432) AARON F. BROUSSARD. § MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255, GRANTING CERTIFICATE OF APPEALABILITY AND DENYING MOTION FOR DISCOVERY Before the Court is Aaron Broussard’s motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 and his motion for discovery. D.E. 250, 271. The government opposed both. D.E. 270, 273. The Court denies both motions, but grants him a certificate of appealability. I. JURISDICTION The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. II. BACKGROUND A. Factual and Procedural Background Aaron Broussard, the former president of Jefferson Parish, Louisiana, was indicted in December 2011 for conspiracy to commit payroll fraud, wire fraud, and theft from programs receiving federal funds, with his former wife Karen Parker and former parish attorney Thomas Wilkinson. D.E. 1.1 Broussard became parish president of Jefferson Parish 1 Count One, the conspiracy count, charged violations of 18 U.S.C. § 371. Counts Two through Twenty-Eight charged wire fraud in violation of 18 U.S.C. § 1343. Counts Twenty-Nine through Thirty-Three charged theft concerning programs receiving federal funds in violation of 18 Case 2:11-cr-00299-HH-FHS Document 276 Filed 07/14/14 Page 2 of 25 in 2003, was re-elected in 2007 and remained in that position until he resigned in January 2010. Id. As parish president, Broussard was responsible for the administration and supervision of parish departments, offices, agencies and special districts. He hired Tom Wilkinson as parish attorney and with Wilkinson’s help hired Parker, with whom he became romantically involved and later married. Parker was hired as a paralegal supervisor for the parish, a position for which she was in no way qualified and that she could not and did not perform. For Wilkinson’s part, he signed off on Parker’s raises and other personnel benefits, and in return, received substantial pay raises himself. The indictment was superseded twice. The Second Superseding Indictment was issued as to Broussard and Wilkinson in July 2012 in which additional details were added to the conspiracy count, including allegations that Broussard received pay-offs from a company that sought to do business with Jefferson Parish. The new charge as to Broussard included bribery concerning programs receiving federal funds in Counts Two through Six. Broussard and Wilkinson were charged in Counts Seven through Twenty-Three with wire fraud. Both were also charged with theft concerning programs receiving federal funds in Counts Twenty-Four through Twenty-Seven. D.E. 117.2 U.S.C. §§ 666(a)(1)(A) and 2. 2 The Second Superseding Indictment charged: Count One, conspiracy in violation of 18 U.S.C. § 371. Counts Two through Six charged bribery concerning programs receiving federal funds in violation of 18 U.S.C. §§ 666(a)(1)(B) and 2. Counts Seven through Twenty-Three charged wire fraud in violation of 18 U.S.C. § 1343. Counts Twenty-Four through Twenty-Seven charged theft concerning programs receiving federal funds in violation of 18 U.S.C. §§ 666(a)(1)(A) and 2. 2 Case 2:11-cr-00299-HH-FHS Document 276 Filed 07/14/14 Page 3 of 25 Ultimately, in September 2012, Broussard pled guilty to Counts One and Twenty- Seven with a plea agreement in which he waived his right to appeal or to collaterally attack his judgment. D.E. 198. Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, Broussard was rearraigned and the Court3 accepted his guilty plea on September 25, 2012. D.E. 202. During rearraignment, the Court found that Broussard was competent, understood his right to counsel, was satisfied with the performance of counsel, and understood his trial rights, including his right to a trial by jury at which the government would have to prove all of the elements of the charges beyond a reasonable doubt. Brossard waived his right to trial and waived his right to silence. Id., pp. 8-9. The Court also found that Broussard understood the charges against him and the consequences of his guilty plea. Id., pp.10-18. The Court found Broussard’s plea was knowing and voluntary and not the result of force, threat, or promise of leniency. Broussard testified it was his own decision to plead guilty because he was guilty. Id., p. 18. 4 The Court found that Broussard conferred with counsel regarding the 3 The undersigned district judge was designated by Circuit Court Judge Edith Jones to hear the case following the recusal of all of the judges of the Eastern District of Louisiana. D.E. 4, 6. 4 3 THE COURT: I find the defendant understands the 4 charge and the consequence of a plea. 5 Has anyone threatened you or forced you to plead 6 guilty? 7 THE DEFENDANT: No, Your Honor. 8 THE COURT: Has anyone promised you leniency if you 9 would plead guilty? 10 THE DEFENDANT: No, Your Honor. 11 THE COURT: Who makes the decision for you to plead 12 guilty? 13 THE DEFENDANT: I make the decision, Your Honor. 3 Case 2:11-cr-00299-HH-FHS Document 276 Filed 07/14/14 Page 4 of 25 plea agreement and understood the terms of the agreement, including his waivers of his right to appeal or to collaterally attack his conviction or sentence.5 The Court additionally found that Broussard was not promised a specific sentence. Id., pp. 18-21. After consulting with 14 THE COURT: Why are you pleading guilty? 15 THE DEFENDANT: Because I am guilty, Your Honor. Id. 5 10 THE COURT: That is especially true because you are 11 giving up your right to appeal your sentence and your 12 conviction and the fine and the restitution that can be ordered 13 unless I sentence you -- I don’t see any exceptions for that 14 waiver of right of appeal. 15 You’re also giving up your right to file a 2255 16 petition and other federal writs that would allow you to 17 challenge your conviction or your sentence collaterally, that 18 is, after they have become final, another request to the Court 19 that the Court reconsider its decisions, but you’re giving up 20 your right to make those appeals. 21 Now, I see at paragraph 7 you are retaining your 22 right to appeal a sentence in excess of the statutory maximum. 23 Of course, I would hope that you would retain such a right, but 24 I would hope I would never commit such an error. You do have 25 that right. 1 If there is a circumstance under which you 2 believe your attorneys have rendered ineffective assistance of 3 counsel, you may still bring a postconviction challenge to your 4 conviction and your sentence. Do you understand? 5 THE DEFENDANT: Yes, Your Honor. 6 THE COURT: Based on ineffective assistance of 7 counsel and no other exception. Do you understand that? 8 THE DEFENDANT: Yes, Your Honor. **** 4 Were you aware that the plea agreement requires 5 you to give up your rights of appeal? 6 THE DEFENDANT: Yes, Your Honor. 7 THE COURT: You had discussed that with Mr. Jenkins? 8 THE DEFENDANT: I sure did, Your Honor. Id., pp. 20-21, 33. 4 Case 2:11-cr-00299-HH-FHS Document 276 Filed 07/14/14 Page 5 of 25 counsel, Broussard agreed to the facts related to his crimes as set out by the government. There was factual basis for the Court’s finding of guilt. Id., pp. 25-33. At no time since has Broussard attempted to withdraw his plea of guilty or assert his innocence of the charges. After deciding various sentencing guideline issues favorably to Broussard, the Court sentenced him to 46 months on Count One and the same for Count Twenty-Seven on February 28, 2013. The sentences were to be served concurrently and to be followed by three years supervised release for each count to be served concurrently, a special assessment of $200.00, and restitution in the amount of $214,209.94. Additionally, Broussard was to forfeit $66,000. D.E. 237. He did not appeal, but timely filed the present motion. B. Prosecutorial Ethical Breaches in the Eastern District of Louisiana During Broussard’s prosecution, the United States Attorney was investigating a variety of public corruption cases, some of which also implicated Broussard. During these various prosecutions, the misconduct of two attorneys in the U.S. Attorney’s Office of the Eastern District was uncovered. It first came to light that Sal Perricone, senior litigation counsel in that office, was blogging anonymously on criminal justice matters, including cases prosecuted by the U.S. Attorney’s Office. The blogging occurred on the newspaper internet site for the New Orleans Times-Picayune in the form of comments to various news articles regarding various criminal justice and political matters. Perricone’s blogging under various pseudonyms was highly critical of the New Orleans Police Department, as well as Broussard 5 Case 2:11-cr-00299-HH-FHS Document 276 Filed 07/14/14 Page 6 of 25 and a number of other high profile individuals who were being investigated by the U.S. Attorney’s Office.6 In March 2012, the U.S.